An appellate court's favorite words: "not preserved"

People v Borden, 2011 NY Slip Op 09719 [4th Dept 2011] [available here]

The Appellate Division Fourth Department* calls itself a "court of correction," and it takes that role seriously. The Court does not go out of its way to reach interesting legal issues, and will not stretch in the slightest to decide a case on the merits if there is any way to avoid it. This is not meant as a criticism of the Court, but rather as an observation. Given the Fourth Department's stinginess, it puts the onus on trial counsel to preserve every possible issue in every conceivable way.

Sometimes, though, there is simply no way to preserve an issue for appeal while simultaneously minimizing the damage for your client at trial. A case in point is People v Borden, decided last month by the Fourth Department. The prosecutor in Borden engaged in fairly serious misconduct during his closing argument to the jury, commenting negatively on the defendant's choice not to testify at trial. The prosecutor's comments were more egregious given a police officer's testimony earlier in the trial that the defendant had invoked his right to remain silent upon being arrested.**

Defense counsel objected, and requested "either a mistrial or a curative instruction with respect to the comment." The trial judge declined to grant the mistrial, but did give a curative instruction.*** Defense counsel did not further object to the curative instruction.

The Fourth Department refused to consider whether defendant was denied a fair trial based on the prosecution's comment, holding that "the curative instruction must be deemed to have corrected the error to the defendant's satisfaction" because defense counsel failed to further object after the trial court gave the curative instruction.

This is asking a bit much of defense counsel. Keep in mind, the Fourth Department is not saying that what the prosecutor did was acceptable. The Court assumes (rightly) that the prosecutor engaged in pretty serious misconduct. Defense counsel asked for a mistrial, and the trial court refused to grant it. Was defense counsel to refuse an offered curative instruction at that point, just so that he could be sure the issue would be preserved on appeal if the jury convicted his client?

A curative instruction is not ideal in that situation, but it is better than nothing. Asking for a mistrial, and then settling for a curative instruction when the mistrial request is denied, should be enough to preserve the issue for appellate review. It is simply not fair to require a trial counsel to choose between mitigating fallout from a prosecutor's misconduct at the trial level on the one hand, and preserving his client's appellate rights on the other.

* The Appellate Division, Fourth Department is the first appellate stop for most folks convicted of a crime (or on the bad end of a civil judgment) in Monroe County and the surrounding area.
** The idea being that a defendant's choice to exercise his fundamental rights cannot be held against him at trial.
*** A curative instruction means, basically, that the judge tries to "un-ring the bell" by telling the jury to ignore what it just heard. This works about as well as you would expect.